While settlement of a dispute is certainly no guarantee that the future relationship of the parties will be amicable, a contested trial is guaranteed to be detrimental. Things are said that cannot be unsaid. The ultimate result is likely to be unsatisfactory to both parties. The end of the trial is akin to the final round of a 15-round boxing contest, with both parties exhausted and hanging on for dear life.

The difference between a settlement and a contest boils down to one simple precept: Neither party will get everything he or she wants. Both parties have a "wish list" but they must prioritize their list. In a settlement, each party can negotiate for what is higher on their list, giving up the lower-priority items. Conversely, in a contested trial, the court decides which items on the list the party does or does not get. The court may, either intentionally or unintentionally, award the client the lower-priority items instead of the higher-priority items. In a perfect settlement, both parties get the high-priority items on their lists. Frequently, in a contested trial, neither does.

The following are rules that, while not absolute, apply to the vast majority of family law settlement negotiations.

Rule One: Be Cordial

You may be used to dealing with your spouse by yelling and screaming at each other. But "posturing" is not helpful in a negotiation. This goes for the lawyer too. Many clients ask "Are you really on my side?" when the lawyer is friendly as opposed to posturing or acting aggressively for show. Cordiality, especially by the lawyer, is not disloyalty to the client, but rather an effective means of settlement. It is not a sign of weakness, but strength.

Your lawyer is most likely friends with the opposing lawyer, but this does not keep that lawyer from being a good advocate for you. In most cases, professionalism and civility lend themselves to getting a better deal for you in the long run. As the saying goes: "If you want to get into a wrestling match with a pig, you have to lie down in the mud -- and the pig will at least enjoy it."

Rule Two: Do Not Give an Ultimatum or Deadlines

Certainly some issues are more important than others. There may even be issues that are non-negotiable. But stating an issue in the form of an ultimatum stops the negotiating process in its tracks. Which of the following tactics is more likely to elicit a measured response leading to discussions settlement and compromise:

* Approach A: Here is a settlement proposal. You have 48 hours to accept it, or it is withdrawn. * Approach B: Here is a settlement proposal. It contains what we believe to be reasonable positions on all issues. If you disagree, please provide us with the reasons you disagree and what you think would be reasonable under the circumstances.

Rule Three: Make Full Disclosure Voluntarily and Freely

Ask yourself: Are you more likely to settle a case where the other side has given you everything you need voluntarily, freely, and openly, or where they stonewall discovery? The answer is obvious. When the other side treats financial information like it was a highly classified government secret, settlement is less likely. This tactic raises the question, "What are they trying to hide?" Mistrust is not conducive to settlement.

If you are the party with access to most or all of the information, it is best that you allow your attorney to give the information to the other side before they ask for it. After all, you know what they will need to settle the case. Your attorney will tell the other side that you are voluntarily providing the information to promote an atmosphere for settlement and to save costs for both parties. He or she will also explain that if there is further information that is only accessible through you, you will be pleased to provide any additional relevant information that you might have inadvertently omitted.

Rule Four: Don't Be afraid of taking the First Step

Many clients feel that taking the first step toward settlement is a sign of weakness. As a result, some cases sit and wait, even though a settlement conference could begin the process of resolution. Timing is essential. To miss the timing because of fear of appearing weak does you no good.

To put it another way, someone has to take the first step, or no case will ever be settled. Viewing this first step as a sign of weakness is an indication of insecurity on your part. Taking the first step is actually a sign of strength: After all, you are so confident in your case that you assume the other side will want to settle, to avoid the embarrassment and cost of eventual defeat in court.

Rule Five: Never Negotiate Backwards

Backwards-negotiating is what occurs when subsequent offers are further away from settlement than previous offers. There are times when facts change that may alter settlement positions. However, assuming no major changes or new discoveries, once a proposal is made, subsequent proposals should be closer to the other side's position, not further away.

Backwards negotiating is not good-faith negotiating because it seeks to punish the other side for rejecting a previous offer. The response of a party who receives a backwards offer should be to stop negotiating. If a proposal is made in good faith, then the rug should not be pulled out from under it.

Rule Six: Never Refuse to Negotiate

True, some cases are harder to settle than others, and some cannot be settled. But you will never know unless you try. Settlement should be attempted in every case, no matter how remote the prospect might seem.

Sometimes, the gap between the positions seems far too wide to "waste" time negotiating. Yet, it is amazing how often the gap narrows dramatically during a negotiations session. Sometimes it is because the gap was there at the beginning only for positioning. Sometimes a party recognizes the weakness of his or her position. The point is, the gap cannot narrow unless there is some communication.

Your attorney understands that you may be reluctant to schedule a negotiations session. It might be helpful to remind them that several years ago, Yitzhak Rabin and Yassir Arafat shook hands on the White House lawn after spending years swearing eternal hostility. When severely criticized in his own country for making peace with his sworn enemy, Rabin replied, "You only need to make peace with your enemies -- you are already at peace with your friends."

Rule Seven: Never Get Angry at a Proposal

If a settlement proposal comes in writing, your attorney will forward that to you immediately. It is not unusual for a client to call the attorney just after reading it, livid at how outrageous the proposal is and how far it is from what the client perceives as fair.

It is true that some proposals are so low or so high as to be insulting. Some ask for the stars, hoping to get the moon. Others misinterpret the parameters of reasonable settlement. Whichever is true, at least there has been an attempt at settlement. Rather than get angry if the proposal is in the stars, then start from the ground up. If the proposal is unreasonable because the other side misunderstands the reality of the situation, then educate the other side. In most cases, any proposal, even a bad one, is better than no proposal at all. At least you will have a starting point.

Rule Eight: Be Prepared

You should work with your attorney to go over an opening proposal, which should leave room for negotiation. You should then educate your attorney as to what movement form the opening proposal is acceptable. Finally, you need to specify the "go to hell" point where litigation is better than accepting the last proposal from the other side. This point is often a moving target, and although it can be discussed ahead of time, it will be truly known only at the instant the judge bangs the gavel and says, "Call the first witness." It is critical that you let you attorney know the parameters for the first two levels.

There are numerous ways to negotiate. In some cases it is with "four-way" meetings, some are through letters, some are through fully drafted proposed Decrees or Orders, and more. Although there are always exceptions, following these rules will create the type of atmosphere that makes a settlement more likely. As with many other things in life, improving the odds is often the best we can do when we do not have full control over the circumstances. You owe it to yourself to do the best you can.

Wednesday, February 24, 2010

Posted using ShareThisThe above details remarks by Delegate Bob "Sideshow" Marshall of Virginia that disabled children are God's punishment to women who had previously had abortions. This comment is national news. It would be just another bizarre aberration were it not for the fact that many people believe things just like this.The critics of a woman's right to choose are increasingly resorting to arguments based solely on fear and Old Testament retribution.

Saturday, February 20, 2010

The Week February 26, 2009: 81% of matrimonial lawyers say they're aware of divorce cases in which Facebook and other social media have served as evidence of infidelity. American Academy of Matrimonial Lawyers.How true. Watch the posts, texts and tweets! They will come back to haunt you.

Thursday, February 18, 2010

Visit our Facebook Fan Page for NEW Discussion topics and Notes. Add your own Comments and ask questions. Become a fan. Visit our website at www.commanderlaw.com for information.Visit avvo.com to check out Legal Guides and answers to a variety of legal questions.Call 757-533=5400 to schedule a consultation.Get the answers to your questions!

Wednesday, February 17, 2010

Lawyers are prohibited by our ethical rules from even raising the threat of criminal prosecution in order to obtain an advantage in a civil case. Increasingly, however, private citizens in divorce cases are using the "criminal" laws to try to gain an advantage over their spouses. For example, in Virginia, parties have to live separate and apart for a court to grant a divorce. Most judges will not even enter temporary orders regarding custody or support if the parties still are living together. Your spouse won't go, and you have no money to go. What can you do? More and more people are going to the magistrate or the court, swearing under oath that their spouse has abused them in some way, and getting a protective order. This carries with it exclusive possession of the house-at least for a time. To add icing to the cake, they also may have the spouse charged criminally with domestic assault. Both of these are done initially with no notice to or input from the other party. Just because one person says so. Unfortunately, people will say a lot of things that just are not true. And they do not that that oath very seriously. Some courts have become so fed up with this that they are actually prosecuting people for making false reports. Bottom Line: It's wrong. Don't do it.

Monday, February 15, 2010

Divorce mediation is widely accepted and court ordered. Mediation means different things to different people. In the form I recommend, you and your spouse would sit down in the same room with each other and with a neutral mediator. With the mediator's help, you would work through all the issues you need to resolve so the two of you can get through your divorce.

Although there certainly are several different styles of mediation, there are several things you can depend on no matter what style your mediator uses. Mediation is flexible and confidential. It gives you and your spouse a way to settle the conflict between you, which is natural and inevitable, in a way that helps you to work together as parents after your divorce.

The mediator remains neutral between the husband and the wife. That means the mediator can't give advice to either party, and also can't act as a lawyer for either party, but can give legal information. That is the advantage of using a lawyer mediator. Also, when you draw up your mediated agreement, it helps to have it drawn up by a lawyer.

What the mediator can do is to point out in open session to both spouses things that each of them should be aware of about what they're trying to accomplish. That open and free exchange of information frees up both spouses to negotiate with each other in confidence. Because both spouses are working with the same base of information, it usually takes far less time to negotiate a resolution that makes sense to both spouses.

Mediation is voluntary. It continues only for so long as all three of you - you, your spouse, and the mediator -- want it to. Your mediator has to have a good reason to withdraw. You or your spouse can withdraw from mediation at any time, for a good reason, a bad reason, or no reason at all.

People often ask, "Does mediation really work?" In a word, yes. We know from years of research that when you compare couples who have mediated their divorce with couples who go through an adversarial divorce, mediating couples are more likely to be satisfied with the process and the results, likely to take less time and spend less money, and are less likely to go back to court later to fight about something.

The main advantage of mediation is that it keeps you and your spouse in control of your own divorce. That can make all the difference in your recovering from your divorce and moving on with your life. Mediation allows the two of you to get through your divorce with less conflict than you would experience in an adversarial divorce. Because mediation is all about working with shared knowledge, mediation also often allows you and your spouse to work together to lower your tax bill . . . and that can often translate to more money for you.

Thursday, February 11, 2010

During our snow days, in addition to watching Lifetime movies, I have answered a number of legal questions on the AVVO website. I have found that an inordinate number of people think that you can "sign away" your parental rights. There are the mothers of children who find that their first choice for their baby's father was not a good one, but now they have found the right one or they just want the father to get out of their lives. They want the dads to sign away their parental rights. There also are the biological fathers who are wrongfully being required to pay child support when all they did was have sex with a woman who for some reason gave birth to a baby.They want to sign away their parental rights. Were it not for restrictions based on good taste and probably the FCC, these would be great for condom ads.In Virginia, your parental rights can be terminated by court order at the request of the Department of Social Services when your children have been placed in foster care because of your abuse or neglect, and they want to be able to place your children for adoption.Your parental rights can be terminated when your children are adopted by someone else, so they are taking on your parental rights and responsibilities (like support).You cannot just walk away from the responsibility of your children by signing away your parental rights unless someone is there to adopt the child. In Virginia, that someone has to be married to the mother. The mother cannot have her new boyfriend adopt her child. She also cannot have the bothersome father just sign a paper giving up his "rights".

The most recent edition of Newsweek magazine discusses an often overlooked phenomenon-divorcing while dying. Specifically, the article looks at actor Dennis Hopper and political wife Elizabeth Edwards. This, however, is not just an issue for the rich and/or famous. The spouse is the one person you cannot disinherit. Especially if you have children from another mother or father, this may be a major issue.In Virginia, there is the Augmented Estate Act which provides that no matter what provision, if any, that you make for your spouse in your Will that he/she can elect not to take what you gave and instead to get one-third of your estate. Most people don't know this and think they can exclude their spouse in the Will or leave them $1.00.If the parties are separated, the spouse can be barred from claiming their elective share, but this often leads to litigation. The spouse has a right to have a jury decide if the parties were separated-and remember the other spouse is dead now and can't testify. I have had those trials. It is not a good legacy to leave to your children. For this reason, many people facing death decide to divorce to avoid the issue for their heirs.

One of the questionable pleasures of being snowed in is that I get the opportunity to see what Lifetime Network movies have to offer. Today it is a teacher being falsely accused of having a sexual relationship with a student. The teacher is fighting criminal charges in court, and her lawyer was advising her of all of the potential consequences of various actions. The teacher then said the thing that lawyers hate to hear most: "Who do you represent anyway?" Unless you tell people what they want to hear, you must be looking out for the "other side". Do you tell your oncologist that he is "pro-cancer" when he's telling you of the risks and advising you of the options? There is no way for any lawyer to do his/her job without telling a client the pros and cons of their case and recommending a course of action, even if you risk hearing those dreaded words. Do yourself and your lawyer a favor, take it for what it is. It is professional advice given with your best interests in mind by someone retained by you to represent you.

Wednesday, February 3, 2010

The number of calls that I receive asking whether a person can get an annulment is astonishing. The usual reasons given are that they have been married less than one year or are in the military or never "really" wanted to get married. These do not form the basis for an annulment of a properly performed marriage in Virginia.

A marriage can be annulled because it is void under VA Code Section 20-38.1 and/ or because it is voidable under VA code Section 20-89.1.

Grounds for Annulment:

No license/solemnization - the marriage was performed without the required license.

Bigamy - the marriage was entered into prior to the dissolution of an earlier marriage of one of the parties.

Incest - the marriage was between relatives forbidden to marry. Note: In Virginia, first cousins CAN marry.

Lack of capacity-mental infirmity - either of the parties lacked capacity to consent to the marriage at the time it was performed because of mental incapacity or infirmity.

Fraud or duress - fraud must be materially affecting the essentials of the marriage.

Impotence - natural or incurable impotence existing at the time of entering into the marriage contract (and the other party did not know it).

Felony conviction - either party, without knowledge of the other, had been convicted of a felony prior to the marriage.

Pregnancy by third party - at the time of the marriage, the wife, without the knowledge of the husband, was with child by a person other than the husband.

Pregnancy of a third party - the husband, without the knowledge of the wife fathered a child born to a woman other than his wife within 10 months after the marriage was solemnized.

Prior prostitution - either party, without the knowledge of the other, had been a prostitute prior to the marriage.

If the marriage does not meet one of the above then you must obtain a divorce regardless of the length of the marriage, whether you are a service member or any of the other things that you have been told.

All personal injury firms which operate on a contingent fee (no money up front ) basis and a few family law firms offer "free consultations". Of course, it makes sense for a personal injury case, since you do not pay unless there is a recovery.

The family law firms that offer free consultations use them to get a potential client in the door but do not provide any useful advice or legal information unless they are actually retained. You have made an appointment to come in for a sales pitch. A retainer fee will be required to be paid which is is far, far more than a consultation fee and the client then is bound to that lawyer.

A paid consultation, however, gives a potential client the opportunity to get actual legal advice or information; to decide if they are ready to hire any lawyer and to decide, then or later, if this is the lawyer who they want to hire. You may have a specific question or questions that need to be answered or may want general information about your rights or the legal process. You may be contemplating a separation, divorce or adoption but just not be certain that you are ready to move forward. A consultation is the perfect opportunity to see what is involved. Some times, you may feel after the consultation that you want to try alternative dispute resolution or to take no action. The choice belongs to the client.

A consultation in my office is designed to help each individual choose his or her proper course of action. There is never a sales pitch.

The statutory factors which a judge is to consider when making spousal support ("alimony") award decisions in Virginia are:

1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;

2. The standard of living established during the marriage;

3. The duration of the marriage;

4. The age and physical and mental condition of the parties and any special circumstances of the family;

5. The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home;

6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;

7. The property interests of the parties, both real and personal, tangible and intangible;

8. The provisions made with regard to the marital property under §§ 20-107.3;

9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;

10. The opportunity for, ability of, and the time and costs involved for a party to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;

11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;

12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and

13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

The receiving party can be denied spousal support if he/she is guilty of adultery.

Section 20-124.3 The Virginia Code lists a number of factors that the judge should consider in deciding what is in the child's best interests. They are:

1. The age and physical and mental condition of the child and the child's developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship between each parent and the child, the parent's positive involvement and ability to assess and meet the child's needs;

4. The child's needs including important relationships such as with brothers and sisters, grandparents, and other relatives;

5. The role which each parent has played and will play in the upbringing and care of the child;

6. Each parent's willingness to support the child's relationship with the other parent, their willingness and ability to maintain a close relationship with the child, and their ability to cooperate in matters affecting the child;

7. The child's preference;

8. Any history of abuse; and

9. Any other factors the judges feels it is necessary to consider.

These are the statutory factors that are mandated by the General Assembly. There are many subjective factors that vary from judge to judge and case to case. For this reason, except in the most clear cut case, it is virtually impossible for any lawyer to predict with any level of certainty the outcome of a custody case.

Monday, February 1, 2010

On my Facebook Page Mary G. Commander, Attorney & Mediator, I provide at least weekly updated discussions, quotations and timely news on important Family Law topics. Check it out using the link on this Blog! I welcome ALL comments and recommendations.

The "Best" LawyersThe "best" lawyers may be the worst for your divorce.Published on April 28, 2009

In every town there are a couple of divorce lawyers who enjoy the enviable reputation of being among the best, toughest, smartest and most aggressive lawyers. These are the lawyers most likely to be hired by wealthy people or by people who define their divorce as a struggle to be won rather than as a settlement to be negotiated. And if one spouse hires one of these vaunted advocates, common wisdom has it that the other spouse must hire an equally prominent lawyer. This thinking, though very common, is deeply flawed and typical of the many myths that dominant popular conceptions about divorce and serve to make divorce the self fulfilling destructive prophesy it so often becomes. So before choosing one of the "hotshots" in town consider a few facts that might temper your search.

1. Almost all divorces, up to 99%, are resolved by negotiated settlement. Unless one of you is very crazy you don't need an accomplished trial lawyer because you are not going to trial; you need a good negotiator who understands what divorcing families need.

2. Winning and losing in divorce is the stuff of popular fiction. Most divorces are settled within well developed local settlement norms and no lawyer can significantly improve your result one way or the other. About any competent lawyer will get about the same result as another.

3. The good divorce is defined as one in which all family members can thrive and in which parents can cooperate around the raising of children. The more contact you have with lawyers and courts the worse will be your divorce. The more litigation you have the more money you will waste on legal fees, the angrier you and your spouse will be, the longer will take your divorce and the more damage you will wreak on your kids. The lawyer who settles cases fastest with the least contact with court, who restrains your own passion for one-sided results, is liked rather than feared by colleagues and who knows both the law and the local settlement norms-is the best lawyer.

4. When you hire the hotshot lawyer, you set yourself up for several rackets that impoverish you while enriching your lawyer. The first is unnecessary discovery. Because the lawyer supports your fantasy that you are going to win a battle in court, it is easy for him/her to obtain your agreement for exhaustive investigation of your spouse's finances. But there are relatively few divorces in which finances are particularly complex. Middle class divorce in which both spouses are employed requires little financial investigation because there is nothing to hide and hiding would be practically impossible to do. So the lawyer who insists on reviewing every check for the past five years, who serves lengthy interrogatories on your spouse and insists on taking your spouse's deposition because "We have to be well prepared for trial.", is just running the bill. It costs you two to five thousand dollars when your lawyer takes the deposition of your spouse. And because you deposed your spouse, your spouse's lawyer feels constrained to depose you. So every unnecessary bit of discovery costs you twice; once when your lawyer does it and a second time when your spouse's lawyer reciprocates. Once you get sucked into this game it has to cost you twenty thousand or more. And most of it is totally unnecessary.

The second racket is unnecessary motion practice. Here, your lawyer plays to your false belief that the divorce is all about court. Need temporary support? File a motion in court. Want more time with the kids? File a motion in court. Your lawyer is only doing what you think he/she is supposed to be doing. But every time you go to court on motion it costs you and your spouse up to ten thousand dollars. It also convinces both of you that the other is so unreasonable that every disagreement can only be worked out in court. Good lawyers can talk to each other and work things out without frequent visits to court.

5. When you and your spouse hire lawyers that don't like each other that fact can cost you a lot of money. You end up paying for court struggles not because you and your spouse can't agree but because your lawyers can't agree.

About Me

I have been practicing law since 1981. If practice makes perfect, then I should be well on my way.
This blog is for information only and is not intended to give legal advice or to create an attorney-client relationship. For that, call 757-533-5400 and schedule a consultation.